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COVID-19 Vaccinations and Workplace Rights: 2022 Case Law Update

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Overview

Last year, there was much discussion on whether or not employers could legally implement mandatory vaccination policies in Canada. In the first part of 2021, COVID-19 vaccines were not readily available to all Canadians, and most employers had not implanted mandatory vaccination policies yet. By August 2021, most Canadian adults had been given the opportunity to become fully vaccinated. In this context, on August 13, 2021, the Federal Government of Canada announced the requirement for all federal public servants to be fully vaccinated by the end of September 2021. The Federal Government also instituted mandatory vaccination requirements for all employees in the federally regulated air, rail and marine transportation sectors by October 2021, while at the same time, requiring vaccination to travel by air or train effective November 2021. After the Federal government took the lead, many Canadian employers followed suit, and there was a rapid influx of mandatory vaccination policies implemented throughout the country in both public and private sectors (including unionized and non-unionized workforces).

There are now several Canadian labour arbitration decisions that consider whether or not mandatory vaccination policies in the unionized context are reasonable and justified. To date, most of these decisions have held that mandatory vaccination policies are reasonable and justified, illustrating an overwhelming consensus that employers can legally implement significant health and safety protections in the context of the COVID-19 pandemic. However, not all policies have been upheld in arbitral law. For instance, in one circumstance a labour arbitrator found a mandatory policy to be unreasonable given that workers could perform work remotely, and other measures (such as testing) could be effective in the absence of vaccination. In all circumstances the context of the workplace, along with the alternative mechanisms in the related policy, will be considered when evaluating the reasonableness of a particular policy.

This article will provide a case law update regarding the legality of vaccination policies in Canadian workplaces, updating a previous article written prior to the emergence of these decisions. While these recent decisions are directly relevant for unionized workplaces, the principles set out are useful for all employers, as the courts may consider similar principles when evaluating mandatory vaccination policies in relevant matters (such as wrongful dismissal claims arising out of the implementation of such policies). The current case law suggests that employers can implement protections against COVID-19 in the workplace, but such protections must be reasonable, balanced and relevant to the particular workplace. In the context of the COVID-19 pandemic, employers must continually consider the ongoing changes in public health direction as well as case law, as matters have continued to evolve and change quickly throughout the last two years, and so should each employers’ approach relating to health and safety measures (including mandatory vaccination policies).

Download PDF: COVID-19 Vaccinations and Workplace Rights: 2022 Case Law Update

Five Superpowers Every Manager Needs

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Do you remember the day you became a manager? You were told, “Congratulations, you’re a manager, you start next week! Let us know what you need, and your assistant will have your keys and access card waiting for you.”

Did that amount of support turn you into a respected and effective manager overnight? Probably not. The sad reality is that many new managers do not receive the training, coaching and support they require to excel in their role as people leaders. Learning the ropes for measuring metrics, updating the team schedule, and filing reports on time is administratively important but only part of the managerial picture. Real success comes from mastering the five management superpowers, which are all about navigating human relationships. It does not matter what company you work for, how long you have been a manager, nor what your title is.  These management skills are required to build healthier relationships and increase productivity.

In this article, I will illuminate the five managerial superpowers, why they are important and provide tips for implementing each one.

Think of them as slices of a pie. You wouldn’t bring a housewarming pie that is missing a slice or two, would you? Nor would you want to be a manager who is a few slices short of a superpower pie.

Manager Superpower #1: Know the WAY

Who Are You? Before you can do anything well—communicate, solve problems or be a mentor—you must know who you are. Self-awareness is the first part of being an effective and respected manager. By knowing who you are and your default position for approaching situations, you can work through your limitations and double down on effective strategies.

People buy into the leader before they buy into the vision.
  – John Maxwell

To know the WAY, ask yourself these questions (and answer them):

  • What’s my communication style when I’m calm?
  • What’s my communication style when I’m feeling stressed?
  • What’s my understanding of emotional intelligence?
  • How do my emotions influence others? And in what way?
  • What’s my leadership style and does it work? For example, are you an open-door policy person? Do you sit around the table with your team or stand at the front of the table? Do you yell at people in front of others or address individual concerns in private? These are difficult questions to face but answering them shows you the WAY.

Communication skills support all five managerial superpowers so use these communication best practices often:

  • Be brief but specific.
  • Communicate in a positive manner.
  • Express yourself calmly.
  • Engage in active listening.
  • Acknowledge what the other person says without disagreeing.

Manager Superpower #2: Manage Transitions Effectively

Businessman Robert C. Gallagher once said, “Change is inevitable, except from a vending machine.” So true! In a workplace context, managers are expected to manage change and transitions even when (and especially when) team members are resistant to the change. Even good change is stressful, and your team will remember how you supported them through change, for better or for worse.

Tips for managing transitions effectively:

  • Understand your own reactions to change. For example, are you overwhelmed by change? Or does it hardly faze you? How flexible and adaptable are you?
  • Communicate clearly and often with employees affected by the change.
  • Listen to employee concerns about the change.
  • Help your team understand why the change is happening and what’s expected of them before, during and after the change.
  • Be strategic, anticipate issues and create a plan for handling them.
  • Manage your own change-related stress so you don’t inadvertently transfer your stress to your team.

As a manager, the first transition to manage is always your own transition into a new role and team. When you become a manager, there are so many unknowns, especially if you’re new to the organization. What happened with the other manager? How were the relationships with the team? Good? Bad? It is important to remember that you and your new team are making the transition together and you are not all starting at the same place. Some people will be thrilled you are there while others will be unhappy about their previous manager’s departure. It can also be difficult to transition from a team member to the team leader. Using the tips above can help you manage these types of transitions.

Manager Superpower #3: Take Ownership

Employees crave leadership so take ownership of your role and your responsibilities as a leader right away. Employees take cues from you, including your emotions and attitudes, which sets the stage for the team culture. How do you want to influence your team? With positivity, enthusiasm and integrity? Or some other way?

Simple ways to take ownership as a manager:

  • Be passionate about your job and enjoy it (or get a new one).
  • Learn about your company’s strategic initiatives and share that information with your team. Too many managers avoid sharing relevant information with their team. This is a wasted opportunity as sharing knowledge builds trust which creates strong relationships.
  • Set standards for team performance and behaviours and help people achieve them.
  • Be or become an effective communicator.
  • Balance the needs of your organization with the needs of your team and make this tightrope act visible to your team (within reason).
  • Be proactive about your own personal and professional development by working with a coach and/or mentor.

If you don’t take ownership of your role, who will?

Manager Superpower #4: Managing Conflict

Self-aware managers know how they deal with conflict and are open to exploring the results they get. Managing conflict is often difficult because most people don’t like it. But it’s the managerial superpower that makes the difference between a good day and developing an ulcer. How do you deal with conflict and what are your typical results? Does your approach generally help or hinder conflict situations? These questions are essential for managers to consider.

There are five styles of conflict management. While it is tempting to label them as the proverbial good or bad, they can all be right—or wrong—depending on the situation.

The five styles of conflict management:

  • Accommodating – You put the other person’s needs before your own.
  • Avoiding – You evade the conflict and hope it goes away on its own.
  • Compromising – You attempt to find a solution that partially pleases everyone involved.
  • Collaborating – You attempt to find a solution that meets everyone’s needs.
  • Competing – You stand firm and don’t consider anyone else’s perspective.

Though some of these styles sound harsh and unproductive, an effective manager knows when to use each of them. For example, a competing conflict management style is appropriate when deciding on workplace safety or compliance protocols. There is no room for compromise when it comes to staying on the right side of the law and avoiding a harassment or worker’s compensation lawsuit.

Employees seem to hate the avoidance style of conflict resolution the most because it assaults people’s ingrained idea of fairness. When someone observes you seeing, hearing and saying nothing about something that’s obvious to everyone else, it kills the team spirit. Of course, sometimes, you must resolve things in a way that looks unfair, such as providing accommodations for one team member. This is yet another reason to develop strong communication skills: they help you navigate tricky situations as logically and transparently as possible.

If you’re uncomfortable with conflict, your conflict resolution skills probably need improvement. That’s okay but you must get help as soon as possible because this is such an important (and common) part of management. Always know, your employees are always watching you. Having poor conflict resolution skills is possibly the fastest way to lose the respect of your team.

Remember the responsibility for developing skills ultimately rests on your shoulders. To increase your conflict management skills, find and use all the resources available to you, including books, internal courses and mentors, or outside professional development. I promise that you will have many opportunities to use the conflict management skills you learn!

Manager Superpower #5: Managing People and Personalities

The first four managerial superpowers are about managing yourself and potentially difficult situations. Now it’s time to talk about the final managerial superpower that brings everything together: managing people effectively. If you don’t have this superpower, your other superpowers won’t be as effective as they could be. (Going back to the pie analogy, you need all the slices to make a whole pie.)

Here are my five tips for managing people effectively:

  1. Know your people – Go beyond names and get to know your team member’s strengths, challenges and career aspirations. When you know your team, you can add value by making connections and helping your people go where they want to go.
  2. Be a supportive coach – Create opportunities for the team to see you as a sounding board and someone who can facilitate career growth and transitions. Coaching allows you to use your listening and observational skills to help your employees optimize their performance and reach their goals.
  3. Provide training and development – Develop a team culture that values training and development opportunities by staying positive about continuous learning. Never frame training as a punishment or your team will quickly devalue any training you provide. Work with the Human Resources team to bring relevant opportunities to your team (and if the budget is tight, consider train-the-trainer sessions).
  4. Be kind – In a world of increased uncertainty, it’s extra important to be kind. When we are stressed or in a hurry, it is easy to forget the niceties that make human interaction meaningful. Kindness also means checking in on people. Is anyone struggling? Are people getting what they need? Skilled managers are kind even when firmness is required.
  5. Look after yourself – Being a manager is rewarding but nobody ever said it was easy! Self-care is rejuvenating and we can only tend to others if we tend to ourselves. Put your hobbies in your calendar and enjoy them. Disconnect from work regularly. Go for a long walk. Create your own professional development plan and work towards it. Taking care of your mental, physical and spiritual needs enhances your life and helps you be a more effective manager.

Leaders reveal themselves through their behaviour. You do not have to be a manager to be a leader, but to be a respected and effective manager, you must be a great leader. By learning and mastering the five managerial superpowers, you will be the best manager you can be.

To learn these managerial superpowers, consider looking into courses such as Building Trust and Managing Unionized Environments.

 

About the Author

Filomena Lofranco

Filomena Lofranco is an energetic senior executive with more than 20 years of human resource, finance, and leadership experience in the public sector. Through her countless leadership roles, she has steered the planning and execution of various specialized programs and projects. She has been instrumental in staff development and in driving successful results across a wide range of cross functional teams. Filomena has a proven track record for being passionate about promoting and inspiring a workplace culture that supports physical, psychological, and emotional well-being for all staff and stakeholders.

 

Further Reading

I highly recommend these two books to increase your managerial superpowers:

Reference List

Amaresan, S. (2021, June 9). 5 Conflict Management Styles for Every Personality Type. HubSpot Blog. https://blog.hubspot.com/service/conflict-management-styles 

Bridges, W., & Bridges, S. (2017). Managing transitions: making the most of change (4th ed.). Nicholas Brealey Publishing.

Furlong, G. T., & Harrison, J. (2018). BrainFishing: a practice guide to questioning skills. FriesenPress.

Goodreads. (n.d.). Robert C. Gallagher Quotes (Author of The Express). Goodreads. https://www.goodreads.com/author/quotes/180697.Robert_C_Gallagher

COVID-19 Vaccinations and Workplace Rights

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Overview

More than one year ago the COVID-19 pandemic shut down most of the world. Such shutdowns gravely impacted many businesses, and otherwise shifted the landscape of working life for businesses that could legally remain open by providing working from home arrangements (when possible) or by requiring significant protective measures (for essential services). Although there is much speculation regarding how the pandemic might permanently shift working life for some sectors over the coming years (including more work from home positions), the reality is, many jobs can only be performed in person and some employers may prefer their staff attend the workplace for various reasons (such as increased productivity, improved morale, building relationships, and other reasons).

As the Canadian government attempts to ramp up its vaccination efforts, limited vaccine supplies, combined with vaccination hesitancy, have slowed the process. At the same time, Canadian public health officers have recently declared that we are in the third wave of the COVID-19 pandemic, and most recently we are seeing an increase of younger patients hospitalized, gravely ill or even dying as a result of contracting COVID-19. Unfortunately, many of these patients include essential workers (like teachers and factory workers) who may have contracted COVID-19 from workplace exposure.

In this context, Canadian employers must consider what measures can legally be taken to protect their workplace. Employers may be considering various measures such as: social distancing, personal protective equipment (“PPE”) and vaccination requirements. At the same time, some employees may have strong opinions or views on why they do not wish to get vaccinated. Other workers may have religious reasons or health related issues that preclude them from getting vaccinated. With all of these considerations, many employers and employees alike want to know their legal rights relating to the imposition of workplace vaccination rules. Balancing COVID-19 protections with workers’ rights is a difficult and unprecedented circumstance that many employers will face in the coming months. This article will discuss legal issues and considerations relating to implementing requirements or policies around COVID-19 vaccinations in Canadian workplaces and other related solutions to consider when trying to protect the workplace from a COVID-19 outbreak.

Please see the updated version of this article, published on Feb 10, 2022: COVID-19 Vaccinations and Workplace Rights: 2022 Case Law Update 

The Myth of Body Language as a Credibility Assessor

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Workplace investigators and human resource professionals should be cautious of relying on the body language of a witness to evaluate their credibility during an investigation.

Fact-finding investigations, especially in cases of harassment, at times turn into an evaluation of one person’s version of events versus another’s, or as some call it, the “he said, she said” dilemma. In these cases, assessing the credibility of the two parties may be the easiest way the investigator can come to any defensible determination relative to credibility. When making a judgement on credibility, evaluating a person’s body language can be tempting and is often supported by many human resource professionals and workplace investigators in Canada. However, the empirical research shows that relying on body language is not a helpful method for evaluating credibility.

To clarify, body language, in the context of this article, includes both verbal cues (speech hesitations, stuttering, voice pitch, and inflections) and non-verbal cues (no eye contact or eye movement in certain directions, fidgeting, and overall nervousness).

What does the research say?

Body language is often referred to in investigation reports when credibility is being determined by the investigator. However, the link between honesty/dishonesty and body language is tenuous. Meta-analyses and experimental studies in the field of deception detection found that neither verbal nor non-verbal cues act as reliable predictors of deception. In other words, there is no conclusive evidence to warrant investigators relying on body language when making judgements on a person’s credibility.

Specifically, Bond and DePaulo (2006) conducted a meta-analysis regarding body language as a predictor of deceitful behaviour and found no relation between the two. In a separate meta-analysis conducted by Sporer and Schwandt (2007), twelve observable behaviours, including eye blinking, gaze aversion, postural shifts, hand movements, etc., were reviewed, and none were found to be correlated with deception. Three additional studies conducted by Wiseman et al. (2012) evaluated whether eye movement is a useful predictor of lying, with all three concluding it was not a useful predictor at all.

Lastly, in the book Talking to Strangers (2019), author Malcolm Gladwell concludes we are not skilled at “reading” others. He quotes a study based on over 550,000 arraignment hearings in New York City between 2008 and 2013. Of these 550,000 hearings, New York City judges released slightly more than 400,000 defendants on bail. A computer program released 400,000 defendants based on the same information that the judges had, including the defendant’s record, age, and what happened the last time the defendant was released. This study pitted man against machine – who would make the better decisions?

Interestingly, the defendants that the computer released were 25% less likely to commit another criminal offense while on bail than those actually released by the judges. The one difference was the judges saw the defendants and factored their impression of the defendants into their decision making. This result is significant and further supports the conclusion that we lack the skills necessary to accurately “read” another person’s body language.

The above studies indicate that body language is not a reliable predictor of honesty/ dishonesty and cannot be relied on to determine the credibility of a witness in a workplace investigation. Non-verbal cues such as eye contact, foot movement, and fidgeting and verbal cues such as speech errors and longer response times do not hold up as indicators of deception.

Why is this research important?

Research shows that relying on body language to assess credibility can be a flawed approach and that body language provides no greater predictive power of honesty/dishonesty than chance. When interviewing a person whose body language suggests that they are being dishonest, ask yourself, where is that assumption coming from? Is dishonesty the best explanation for their behaviour or are other factors at play?

There can be many reasons for certain body language to appear from a witness during a workplace investigation, but why does it appear? Most Canadians will not be involved in a workplace investigation during the course of their careers. When someone finds themselves involved in one, it is only natural for them to be nervous or fearful of the process. This anxiety about the investigative process may explain why some witnesses may appear less than truthful to the investigator when what they actually are is nervous.

Conclusion

It is tempting to believe we can tell when someone is not being honest. We sometimes infer the dissonance in their mind must be somehow reflected in their body. The reality is simpler yet more inconvenient: It is difficult to determine what other people are thinking, and there is little we can do to change this. Workplace investigators are, therefore, charged with sorting through the ambiguity to come to a well-reasoned assessment of the facts.

Relying on an evidence-based practice is paramount to building defensible conclusions. For reliable predictors of honesty/dishonesty, look to more concrete factors such as the following:

Determining the Plausibility of the Witness’s Story
Does the version of events offered by the witness make sense? Does the story “hang together” given the circumstances surrounding the event that they describe? Is the story consistent with what a reasonable person would see as normal in that situation?

Does the Witness have Motive?
Does the witness have any motivation for the investigator to believe their version of events? Are they motivated to lie to the investigator? Typically, if a witness has no motivation to lie about their story, they are likely more reliable.

Can the Witness’s Story be Corroborated?
Is the witness’s version of events corroborated by others? Is the witness’s story coherent with the versions offered by others interviewed? Having corroborating evidence is powerful and can go a long way in determining a witness’s credibility.

What is the Past Record of the Witness?
Reviewing the past record of a witness can be a helpful way to assess the possibility that the witness may attempt to mislead the investigator. This may include reviewing the witness’s disciplinary record for situations where their credibility may have been called into question.

In the final analysis, the evidence is clear – we must not rely on body language to assess credibility. Rather, workplace investigators must be diligent and earnest in relying on facts over feelings, beware of our biases, and to be ready to challenge our assumptions about people.

About the Author

Devan Corrigan
Devan J. Corrigan is the Founder and Principal of Corrigan HR Consulting which provides consultancy services in the area of human resources and labour relations. He is often called upon to conduct workplace investigations in both the provincial and federal jurisdictions. Devan holds an Honours degree in Psychology from Saint Mary’s University and a Master of Industrial Relations from Queen’s University.

 

References

Bond, C.F., & DePaulo, B.M. (2006). Accuracy of deception judgements. Personality and Social Psychology Review, 10(3), 214–234.

Gladwell, M. (2019). Talking to strangers: What we should know about the people we don’t know. Little, Brown and Company.

Sporer, S.L., & Schwandt, B. (2007). Moderators of nonverbal indicators of deception: A meta-analytic synthesis. Psychology, Public Policy, and Law, 13(1), 1–34.

Wiseman, R., Watt, C., ten Brinke, L., Porter, S., Couper, S. L., et al. (2012). The eyes don’t have it: Lie detection and neuro-linguistic programming. PLOS One, 7(7), e40259. doi: 10.1371/journal.pone.0040259

 

Best Practices for Returning to the Workplace

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There are many unanswered questions about Canadian workplaces as we look toward reopening offices. The well-established principles and guidelines that employers, unions and employees have followed for many years will certainly help navigate this process. That said, this pandemic takes us into new and uniquely uncharted waters that may well shift some or all of these principles as we move forward. This article will look at the frameworks in place today, as well as best practices for boldly going where few workplaces have gone before.

Management Rights

An important principle is the idea of management rights, in both union and non-union workplaces. Following this principle, employers, for example, have the right to determine work location – remote, in-office, or a mix. In most collective agreements, for example, the management rights clause typically allows management to set all aspects of the work and workplace, unless specific language has been negotiated in the collective agreement. In non-union workplaces, this right can only be constrained by language in individual employment contracts.

This is, of course, not a blanket right – employers cannot violate employment standards legislation or labour laws, nor use this right in any way that is arbitrary, discriminatory, or done in bad faith. Practically speaking, however, if the employer decides they want the workforce to return from remote work to working in the office, they have a right to this.

It would be a mistake, however, for employers to focus too heavily on these rights as a way to make effective decisions for the organization. As a famous saying goes, “Just because you have the right to do something does not make it the right thing to do.” In addition, this right comes along with some significant obligations.

Download PDF: Best Practices for Returning to the Workplace

Embracing Emotions in the Workplace

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During one of our Strategies for Workplace Conflicts programs, a participant commented that she told her staff that she didn’t “DO emotion!” I really appreciated her forthright statement which led to a valuable discussion about the place of emotion in the workplace. How do we handle the expression of emotion? Are emotions welcome or not? How do we handle an emotional outburst in a meeting or deal with strong negative emotions between two co-workers in conflict? How do we deal with our own emotions?

Emotions are part of being human. We are wired to feel. Many of us are not in close touch with our feelings, often because of our upbringing. Are you familiar with the phrase “if you don’t have anything nice to say, don’t say anything at all!”? Emotions can spring up suddenly and may pass just as quickly. Yet, if they are not dealt with, they may fester and intensify.

Consider your workplaces during the pandemic. Can you name some of the emotions that you are experiencing? What about your employees or team members? I’m guessing that fear, frustration, loneliness, grief, and exhaustion may be present. There may also be some positive emotions such as relief (from avoiding long commutes for example).

In this article I’m suggesting something that may seem counter intuitive. Rather than avoiding or squelching the expression of these emotions, try leaning in and welcoming them into your workplace.

Download PDF: Embracing Emotions in the Workplace

Reducing Participant Stress Before a Workplace Investigation

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It is normal for participants in a workplace investigation to feel some anxiety, but too much worrying can create barriers to obtaining critical information, which is a challenge for investigators looking to build complete and thorough reports.

Ensuring participants fully understand the process and their role in it can help alleviate unnecessary anxiety during the investigation. With a greater understanding of the process, participants can feel empowered to speak confidently in the interview and provide the investigator with the necessary information.

Where does this anxiety come from?

Participating in an investigation can be stressful. Most people do not have the experience of participating in a workplace investigation and simply do not know what to expect. Without a proper understanding to put their interview in the larger context of the investigation, participants could engage in counterproductive and unhelpful behaviours. They may fear scrutiny falling on their own actions or the consequences of sharing their knowledge of an incident with the investigator. They may feel they have no control over the process and be less than cooperative. They may, intentionally or not, withhold critical information. Some may even refuse to engage in the investigative process at all. All these behaviours act against the goal of uncovering the relevant details of a workplace incident.

These behaviours do not make a participant deceitful but rather it stems from a survival instinct and is linked to the fight or flight response, a mechanism that enables individuals to react quickly to a threat by either facing the threat directly or disengaging it by escaping to a safe place. Viewed in this light, becoming adversarial in an interview or refusing to participate can be seen as rational responses to stress, even if such behaviours are unwarranted. Ultimately, the investigator wants to curb these kinds of emotional reactions from participants’ as they will not be conducive to the investigation.

The investigator must reduce the imagined “threat” in the mind of the participant before conducting the interview. Luckily, there are practical solutions to alleviate anxiety before interviews which will result in a better outcome. This article will provide some tools that will allow the investigator to eliminate some of the unnecessary pressure felt by the participants. This should result in higher-quality interviews.

Although no investigation process is stress-free, ensuring participants understand the process ahead of their interview can greatly reduce their stress. It is clear that some participants like the Complainant and Respondent in a case will likely receive more information than witnesses, but providing information about the investigation to all participants will generally be helpful for the investigator and to the overall process.

Using the following two-step process before conducting an interview will benefit both the investigator and the participants of the investigation.

Step 1 – Introductory Letter or Email

Send a well-crafted letter or email to the complainant(s), the respondent(s), and any witnesses (i.e. all participants).  The letter or email should include the following:

  • the mandate of the investigation,
  • the role of the participant in the investigation (are they the complainant, the respondent or a witness)
  • the expectation of maintaining confidentiality throughout the process,
  • the time and place of the interview with the participant, and
  • request for a pre-interview phone call.

Outlining the process of the investigation in writing from the start will reduce participants’ anxiety level.

Step 2 – Pre-interview phone call

This step is significant in decreasing anxiety of participants involved in the investigation. The pre-interview phone call allows the investigator to provide further details, including introducing themselves, the mandate, and explaining the investigative process in more detail.  This call also provides the participant a chance to ask questions about what is expected of them during the process.  Having this take place ahead of the interview establishes rapport between the investigator and the participant early on and it also humanizes the process. In this phone call, the following issues should be addressed in more depth:

1. Introduction of the investigator

It is important to explain that this call is not the actual interview, but serves as an opportunity for introductions between the investigator and the participant. The investigator should explain that the interview will take place at a later date, and most likely in person. Information provided to the participant can include the professional and educational background of the investigator, the investigator’s role as a neutral third party, and the expectation of the participant to provide truthful answers during the interview.

2. Explain the mandate in general terms

Explaining the mandate during the pre-interview phone call is critical.  If participants understand the purpose of the investigation, they will be able to identify what information is relevant to the matter at hand. This gives the participants confidence ahead of the interview and it helps the investigator as well, since the participant will think more critically about the information that is required.

3. Explain why the organization is investigating the matter

Participants can often be critical of the reasons why organizations conduct investigations in the first place. During this call, the investigator can explain that organizations have a legal obligation to investigate alleged instances of harassment, discrimination, and violence in the workplace, pursuant to legislation in most Canadian jurisdictions. To allay any further skepticism about the investigation, the investigator can also explain that workplace investigations are ultimately conducted with a hope to correct some workplace problem that exists. Again, this explanation should help the participant to understand the process and reduce some stress.

4. Explain what to expect with the investigative interview

Participants often fear the interview, and in particular, the questions that will be asked by the investigator. The investigator should explain that the participants will be asked questions in good faith and will be expected to provide truthful responses. It might also be helpful for the investigator to explain that they will not be trying to “trip up” the participant or trick them with difficult questions. It is important to note that the investigator is not interested in being deceptive but is interested in getting to the truth. Tricks and traps are counter-intuitive to this end. Explaining this to the participant will go a long way in establishing a level of trust prior to the interview.

5. Reconfirm the importance of confidentiality

This might be the most important part of the call with the participant as it is vital the investigator gets commitment from the participant to maintain confidentiality throughout the process. The investigator should relay that ensuring confidentiality protects the integrity of the investigative process. Participants should also be advised that if confidentiality is breached and information leaked to other employees, the entire investigation may be compromised. Depending on the organization’s policy or process, a breach of confidentiality could also result in a disciplinary penalty to the participant culpable of that action

Conclusion

The interview of participants is critical to producing a high-quality investigation. The accuracy and completeness of the information provided by participants during an interview can be skewed, or even incomplete, when participants experience stress and anxiety about the process. This negatively impacts the legitimacy of the investigation. The two-step process outlined above will go a long way to reducing participant anxiety by building rapport and trust between investigator and participant, resulting in higher quality interviews and a more complete investigation.

 

About the Author

Devan Corrigan

Devan J. Corrigan is the Founder and Principal of an HR consulting firm, which provides consultancy services in the area of human resources and labour relations. He specializes in conducting workplace investigations in both the provincial and federal jurisdictions. Devan holds an Honours degree in Psychology from Saint Mary’s University and a Master of Industrial Relations from Queen’s University.

Evidence Collection: Practical Tips for Workplace Investigations

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Overview

Workplace investigations have become commonplace across Canada. Many Canadian jurisdictions require that employers implement workplace harassment and discrimination policies, which often include mandatory investigation provisions. Whether or not investigations are legally mandated, it is sound practice for an employer to conduct an investigation when there may be potential workplace harassment, human rights violations, breach of company policy, criminal activity, security breaches, legal action, or media scrutiny.

A fair and reasonable investigation can provide a defense for employers to assist in future litigation and/or human rights complaints.[1] Beyond legalities, investigations can also assist employers in identifying and resolving workplace issues, helping them to create a more productive and healthy working environment. For all of these reasons, workplace investigations provide an important function in today’s workplace. However, an investigation will only be useful if it is conducted in a fair and reasonable way.

Collecting the evidence is a fundamental step in conducting a fair investigation. Evidence may include witness statements, video surveillance, supporting documents (emails, letters, phone records, time sheets, text messages, photographs) and any other useful information regarding the relevant issues. While many witnesses may participate in good faith, people’s memories are not always reliable, and co-workers may share stories before an interview which could taint recollections. Further, not all witnesses will participate in good faith, resulting in dishonest and/or inaccurate witness statements on some occasions. Because of witness unreliability, workplace investigators should adequately instruct witnesses on confidentiality, while also making best efforts to collect and to preserve supporting documents when available. Following proper processes will assist investigators in ensuring that they have meet the good faith standard as required to conduct and complete workplace investigations. This article will highlight important considerations in collecting and preserving evidence when conducting a workplace investigation.

Download PDF: Evidence Collection: Practical Tips for Workplace Investigations

 

[1] See for instance: Morgan v. University of Waterloo, 2013 HRTO 1644 (CanLII) where the HRTO held that the university’s response to the complaint was “reasonable” and that the university had met its duty to investigate the circumstances; therefore, the award for damages came from the individual respondent only (and not the university). In this regard, a reasonable response and proper investigation can vitiate liability even in a circumstance where there is a finding that workplace harassment occurred.

Creating Kinder, More Productive Workplaces: Ongoing and Everyday Conflict Engagement

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Conflict is tough for most of us. According to many physiologists, we tend to tap into several simple strategies when faced with conflict: fight, flight, or freeze. As a result, we likely aren’t reducing unnecessary conflicts, and effectively dealing with necessary conflicts in productive ways. So many opportunities are lost because we aren’t engaging well. Being effective at conflict, both in a proactive and reactive way, demands that we work at it as an ongoing and everyday activity. In essence, it is a lifestyle choice in how we talk, problem solve, inquire with others, and arrange our processes and teams.

There are a number of choices, activities, and strategies that can be used to enhance your organization’s ability to handle conflict in a better way. The following are just a few:

  1. Hold People Accountable for Negative Behaviors and Celebrate Positive Behaviors
    In working with organizations and leaders in many fields, I have found a few common missteps in conflict. One is the mishandling or lack of dealing with toxic people in our workplaces. They often get passes because they are good at their jobs or they are retiring soon, among various other reasons. The trouble is that they are doing grave damage to our teams and they also are setting a norm that bad behavior is allowed. Ultimately, we create workplace monsters by allowing the negative behaviors. Therefore, skills are needed to hold people responsible and foster realistic change.Additionally though, we also must praise those team members who collaborate, share work, ask questions, are kind and gracious to their peers, and participate in a culture of radical candor (the topic of an outstanding book by Kim Scott). It can be as simple as saying “thank you” for asking a question or providing well-informed constructive feedback. It may include features of a performance review and therefore financial incentives for sharing work and helping others with work. The key is to celebrate those times when people are exhibiting positive conflict behaviors.
  2. Ask More Questions. Ask Better Questions
    Experiences in our youth do little to promote the use of questions as a leadership tool. Therefore, it can be difficult to ask thoughtful and strategic questions “on the spot” when we are struggling with problems. Questions are such an important tool in conflict and any problem-solving activities. They lead to better problem identification and therefore more robust problem solving and even relationship building. People feel honoured, trusted, and included when they are involved via good questions and responses.Brainfishing: A Practice Guide to Asking Questions by Gary Furlong and Jim Harrison, is a particularly helpful book that provides tools for improving the strategic and relationship-building use of questions. It provides ideas and steps for improving how you ask questions. First though we must disregard any natural tendencies to think that asking questions is a sign of weakness or dimness. We need to admit we don’t understand or that we need to understand more deeply. This leads to curiosity, which can lead to better outcomes for the people on our teams and on our projects. Just think about the last time you asked someone a genuine question. I imagine that thoughtfulness on your part led to a great discussion and an enriched relationship.
  3. Involve People Strategically
    The pendulum can swing really far when it comes to collaborative decision making and processes. Some organizations have embraced the principles of collaboration and yet they aren’t using it strategically enough. Signs of this include: people speaking disparagingly about meetings, people not implementing plans and decisions, and process fatigue (“Are we ever going to get anything done?”). Great leaders are thoughtful about the when, how, and who of inclusion. I liken it driving a stick shift; it takes practice and you have to push, release, and shift at the right moment for the transition to be smooth. The parts need to be moving together in a coordinated fashion at the right moments.It is important to ask people how and when they want to be involved, and then respond when you can’t meet those needs and include them in the ways they want when possible. Additionally, team members need to advocate for themselves and their peers when they need to be included in an important plan or project decision. People don’t need deep involvement in each and every step typically, yet we need to consider how we involve them in order to provide the opportunity for their voices to be heard and our processes and final products to be that much better.
  4. Provide for Various and Dynamic Conflict Modes
    Conflict competent teams are part of conflict competent organizations, meaning that every person in the system has some degree of conflict-engagement skills and there are clear avenues for handling conflict. The modes have to work for the people in the system. Some systems include online features, clear policies and processes, more ongoing and consistent performance review channels, training workshops, committees/boards, purposeful interpersonal interactions, policy/procedure reviews, one-on-one conversations, coaching, formal processes (e.g. mediation), and disciplinary processes. By no means is this list exhaustive but it gives a sense of the many moving parts of a conflict competent organization.Identifying the appropriate modes for any organization involves steps; talking with people to identify the right ways of handling conflict, designing how these processes will operate in your organization, building awareness around the modes, experimenting with the modes, correcting any inadequacies, and evaluating in an ongoing way are just some of the steps. These steps can take time and may need outside help, but they are invaluable in having a conflict competent organization.

In order to do all of the above, there is a fundamental characteristic of the organization and it is to:

  1. Gain Executive-level Support for a Collaborative Culture
    It is entirely possible for a team in an organization to do #1-4 in an organization that doesn’t, but they are limited by their surroundings, policies, norms, and executive leadership that foster those surroundings, policies, and norms. In order for conflict competency and collaboration to occur in every team and in every meeting, disciplinary process, and strategic planning session, the executive team must support the principles and build and use the skills themselves. This doesn’t mean simply setting policies and changing the hierarchical structure. It means diving deep into the organizational culture in order to create new systems, structures, and therefore relationships. Too often, this isn’t the starting point but it should be.

The “why” of this is important. People are demanding this type of interaction in their workplaces, communities, and other team-oriented activities more. This is particularly true of our emerging generations. Each of these helps people to feel more connected to their employers and fellow team members. Rather than mistreating one another over unnecessary conflict, coworkers can work alongside each other while also engaging in problem solving (i.e. conflict resolution) in a more robust way. People can start solving the problem that their organization is having. Numbers 1-4, in particular, provide a clearer path to helping our workplaces become kinder, more collegial spaces. Work can be tough at times, often because of how we interact with our colleagues. It is so much better to work in an environment in which there is the expectation that we are supportive, collaborative, and kind to one another through even the most difficult of times. This frees our time at work to be more productive and doing so in a collaborative and supportive way.

 

About the Author

Joan Sabott

Joan Sabott is a facilitator for the Queen’s IRC Strategies for Workplace Conflicts program. Joan Sabott is a practitioner, consultant, trainer, teacher, and coach in conflict engagement and resolution. Currently, she is an adjunct faculty at Creighton University in Omaha, NE, USA, on leadership and conflict.  Joan is an Affiliated Practitioner and former Senior Program Manager with The Langdon Group. She has consulted on various projects in the organizational sector for businesses and public agencies, and on environmental projects in the substantive areas of water, transportation, and land use and planning.  From one day (or hour) to the next, she is mediating, facilitating, coaching, advocating and providing impromptu training sessions on conflict-related topics. Joan holds a B.S.B.A. in History, a Certificate in Secondary Education, and a Masters in Negotiation and Dispute Resolution, all from Creighton University.

 

If you are interested in custom training on this topic, please contact Cathy Sheldrick at cathy.sheldrick@queensu.ca.

 

References

Furlong, G. T., & Harrison, J. (2018). Brainfishing: a practice guide to questioning skills. Place of publication not identified: FriesenPress.

Scott, K. (2019). Radical candor: be a kick-ass boss without losing your humanity. New York: St. Martins Press.

Relationship Management in a Union Environment

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Building relationships in the workplace is hard – and it takes work. It’s even more difficult when you work in a unionized organization which has traditionally adversarial relationships. But these days, organizations like the Ontario Secondary School Teachers’ Federation (OSSTF/FEESO) are stepping away from the attitude that, as a union, you have to be in ‘fight mode’ all the time. They are working towards accomplishing more for their members by trying to have better relationships with management.

This is where the Queen’s IRC Relationship Management in a Union Environment program comes in. In January 2019, OSSTF asked Queen’s IRC Director, Stephanie Noel, to run a one-day custom training program for its new Protective Services Committee (PSC). The training focused on working towards common interests, better communication, and handling conflict in workplace relationships.

Bob Fisher, OSSTF Director of Member Protection, says that the vision for the new Protective Services Committee is that it’s a committee of experts. Committee members will give advice for central negotiating issues, but also be a resource to Local bargaining units in their day-to-day labour relations issues. The 34-member committee is made up of Local union leaders from across the province, assisted by 8 staff members.

“We used to have a provincial collective bargaining committee that just wasn’t meeting the needs of the organization,” said Kerri Ferguson, OSSTF Director of Negotiations Contract Maintenance. “It tended to be populated with grassroots members who didn’t necessarily have all of the skills and experience.”

The people who are on the new committee were chosen because they already have a certain level of expertise in negotiations, grievance arbitration, problem solving, collective agreements, contract maintenance, and education funding. And with a strong training component built in, particularly for the first year of the committee, Bob expects that members will become “better experts” at the things that they’re already experts at, and raise their level of competence in the areas where they aren’t as strong.

When Kerri and Bob sat down to decide what training they needed, one of the first things they identified was the desire for people to establish good relationships with their employer counterparts.  And then they had to decide ‘How do we get that in front of the committee?’ The first thing Bob thought of was Queen’s IRC. He was aware that Queen’s IRC did custom training, and both he and Kerri had taken Queen’s IRC labour relations courses in the past.

“Everyone in our organization who does something through Queen’s IRC acknowledges its quality,” Kerri said.  “We have never done anything like we’re doing this year in terms of spending money on quality training for this group of experts,” said Kerri.  Previously, they had mainly done internal training.

Queen’s IRC facilitator, Jim Harrison, led the relationship-building program for OSSTF. “The focus for a program like this would normally be on the front-line people who are negotiating and handling grievances,” said Jim. It’s a critical skill for them to be able to have good communication skills, understand common interests, and be able to work well with their colleagues.

“What Bob and Kerri picked up on was that building these kinds of relationship skills also improves internal relationships within the union itself – department to department, individual to individual, employee to management,” said Jim.

Being in the education business, PSC members are exposed to a great deal of professional development, Bob said. “I had a number of people come up to me after the Queen’s IRC session and tell me that it was the most meaningful, useful P.D. they have had – ever!”

Feedback from the committee members about the IRC program was overwhelmingly positive.

Betty-Jo Raddin is a Local president in the Bluewater District School Board, a Protective Services Committee member, and the Vice-Chair of the Negotiations and Implementations Sub-committee. She was able to takeaway lots of key points from the ‘questioning and listening’ section.

“I need to be able to ask the right questions and listen in order to be able to effectively problem solve the situation,” she said. “I need to know what to ask them in order to figure out, is there some way that we can come up with a resolution that could work for both of us?”

“When you’re having a discussion or disagreement and you’re not reaching a resolution on something, often I think we blame the other person instead of looking at ‘what’s the situation?’ What are the situational reasons that they’re unable to agree to what we need them to agree to?”

Betty-Jo appreciated that this training was tailored to a unionized environment because it was very applicable to her situation compared to some of the other outside training she has done.

Dave Weichel has been a chief negotiator with OSSTF for about 18 years. He is a member of the Protective Services Committee, vice chair of Contract Maintenance and Member Protection Sub-committee and still works on a day-to-day basis as a guidance counselor. Dave is in an unusual position, as most of the people who are involved in the PSC are exclusively serving as OSSTF leaders.

“As somebody who still has to deal with school board level development, the Queen’s IRC Relationship Building training was one of the best things I have ever had access to!”

Dave was impressed with the fact that the training was not only in-depth, but also interactive with great opportunities to sit down and participate. “It wasn’t just having someone talk at us for eight hours,” he said. “You really feel like you walk out of there better prepared, with a better toolkit, to go about doing what we do. It was awesome.”

The Queen’s IRC approach includes exercises that allow people to work through real life situations and practice the skills they are learning in a safe environment. While these exercises were sometimes a bit awkward for the OSSTF participants, they were excellent learning experiences.

For the Chair of the Protective Services Committee, Fatima DeJesus, the training was a good refresher on conflict resolution skills. Part of the training focused on learning to step into conflicts rather than running away from them, so you are able to resolve them before they blow up into something bigger.

Fatima is also the president of an educational support staff bargaining unit and early childhood educators bargaining unit. The training made her think about what the other side is feeling and thinking about, which she acknowledges, is something that you often forget. “You’re very focused on what you want as the Local leader, and what’s important to you, but you sometimes lose sight of what’s important to the other side,” she said. “The room was full of experts, but it was quite interesting to hear that a lot of people didn’t always think about what the other side was thinking.”

The questioning and listening section also stood out for Fatima. “I’ve learned to ask the open-ended questions, and I’ll be honest with you, I’ve learned to shut up a little bit and listen a little bit better too!”

Fatima echoes what the post-program evaluations revealed: “It was amazing training. I would have to honestly say probably one of the best training sessions I’ve ever had. If anyone is even considering doing this, then I would absolutely recommend it 100%.”

OSSTF is a union with 60,000 members, 230 job classes, 151 bargaining units and 37 districts. The bargaining units are organized by job class which includes teachers, support staff, custodial, office and clerical staff. Although this training was created for members of the PSC, it was also opened up to Local leaders.

“I sat at a table with Local people,” said Kerri Ferguson. “At my table, no one else had done Provincial office level work. All of them were thrilled with this training. It made them think in ways they’ve never thought before.” Kerri said her tablemates were already planning to use the techniques they were learning as soon as they returned to the office.

Kerri enjoyed the mixture of speaking, writing, thinking and table exercises. “For me personally, I think it validated and gave some language to what I’ve always believed and been trying to do.” It opened her eyes to the fact that things that come naturally to some people don’t necessarily come naturally to others. “I’ve learned what needs to be explained to people (which I just didn’t think needed to be explained) and I have the words to do it.”

Kerri and Bob are full of praise for facilitator Jim Harrison and Queen’s IRC. “Jim was a very dynamic presenter – he went for the entire day and never seemed to lose energy,” said Kerri.

“There was lots of really good material to chew on, and he presented it in a way that kept everybody engaged,” Bob said. “I just can’t say enough about how pleased I am with the way he operates … Of course, I’ve come to expect that from Queen’s IRC.”

As someone who has attended previous Queen’s IRC programs, Bob said he is always impressed with the quality of the training, and this custom session was no exception. “I’m really pleased with the way it went.”

 

For more information on custom training, please visit our website at https://irc.queensu.ca/learning/custom-training/ or contact Cathy Sheldrick at cathy.sheldrick@queensu.ca.

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